JDI IN THE NEWS - 2005

Robert Crowe, Lawsuit focuses on rape in prison, Houston Chronicle, October 16, 2005.

WICHITA FALLS - The first day Roderick Keith Johnson stepped into the notoriously violent Allred prison unit here in 2000, the openly gay man says, he was branded a "punk" by prison officials and inmates, leaving him fair game to predators.

He was raped by another inmate, Johnson said, beginning 1 1/2 years of being traded among gangs such as the Gangsta Disciples, Mexican Mafia and Mandingo Warriors.

"(I) felt worthless that I had been violated in the biggest way and just couldn't face anybody," Johnson, 37, testified at trial in his lawsuit that accuses six prison officials of failing to protect him.

A federal jury here is expected to decide this week whether prison officials violated Johnson's Eighth Amendment rights by failing to protect him from cruel and unusual punishment.

Johnson's trial has become the flagship case in a national movement to stop prison rapes. The trial's outcome, civil rights activists and criminal justice professors say, could be the starting point for reform.

"We hope to show these defendants and men and women who work in Texas prisons that they will be held accountable," said Kara Gotsch, spokeswoman for the American Civil Liberties Union's Prison Project. "If they're indifferent and calloused to vulnerable prisoners asking for protection from rape, they will face consequences."

For Johnson's ACLU lawyers, the case epitomizes the problems in Texas prisons despite reforms imposed by the U.S. Prison Rape Elimination Act of 2003.

The act requires the gathering of national statistics on sexual assaults; the development of guidelines for states about how to address prisoner rape; the creation of a review panel to hold annual hearings; and grants to states to combat the problem.

In the 1999 Ruiz ruling on prison reform, the U.S. District Court for the Southern District of Texas found sexual assault at the time was a pervasive problem in Texas prisons.

In 2001, the Human Rights Watch report No Escape: Male Rape in U.S. Prisons found that prison rapes in Texas had reached a crisis.

The ACLU and the California-based group Stop Prison Rape say the system has improved, but they still receive more rape complaints from Texas inmates than from any other state. In 2004, inmates alleged 550 sexual assaults by other inmates in the Texas system.

But Mike Viesca, a Texas Department of Criminal Justice spokesman, said Texas prisons have a zero-tolerance policy regarding prison rape.

Relocating a victim

If an inmate reports a sexual assault, Viesca said, the TDCJ's Office of Inspector General oversees an interview and medical exam at the prison infirmary or at an outside medical facility. When the victim returns to the unit, he is placed in a different living area.

The suspect is placed in administrative segregation, and incidents that are substantiated are referred to county prosecutors for further action, Viesca said.

"Texas is a leading state in efforts directed at stopping prison rape," he said.

A Houston Chronicle analysis of federal data found that Texas has the highest rate of prison-rape allegations of any state, at about 4 per 1,000 inmates. The national average, according to U.S. Justice Department data, is 1.05 allegations per 1,000 inmates.

"We have created an environment where offenders can feel comfortable telling us," he said. "If the numbers were lower, that would raise some flags."

Helen Eigenberg, a prominent academic on prison rape, tends to agree with TDCJ that an increase in allegations is a good thing.

"I think allegations are going up because more people feel they can report them in Texas," said Eigenberg, a criminal justice professor at the University of Tennessee at Chattanooga.

At the same time, Texas substantiates far fewer rape allegations than most states with large prison populations.

"That suggests officials have major work to do in their culture," Eigenberg said. "If inmates are reporting increased numbers and the system doesn't respond, the message is pretty clear that there is no change."

The ACLU's Gotsch views the Safe Prisons Program with skepticism, especially since it wasn't TDCJ's voluntary creation but the result of a legislative mandate after the Prison Rape Act and Ruiz ruling.

Difficult investigations

Johnson's case demonstrates the difficulties prison officials face when investigating claims by prisoners, who, according to OIG Director John Moriarty, are inherently manipulative people. Johnson was in prison for violating probation on a burglary conviction.

"Only God knows if he is telling the truth," Moriarty said in an interview last spring. "He alleged 50-plus inmates sexually assaulted him, and we proved that's physically impossible, and we've had inmates say that didn't occur."

But Ray Hill, a gay activist and former prison inmate, says that once an inmate's "in the sex game, there is no way out."

By acquiescing to requests for sex from "protectors," inmates are branded "punks" and preyed on.

Guards and prison officials say they did not violate Johnson's civil rights because he provided no proof that he had been raped. After the ACLU filed the suit, TDCJ officials investigated all allegations and concluded that he was trying to manipulate the system to get out of the Allred Unit.

Johnson's lawyers face a formidable challenge in persuading a jury in a conservative prison town to rule in favor of an ex-convict the defense has portrayed as a drug addict prone to embellishment. Johnson said he asked prison officials to place him in safekeeping to avoid rapes by inmates who forced him to play the role of a woman named "Coco." Each of his seven "life endangerment" requests for protection was denied by Allred's Unit Classification Committee.

'Degree of skepticism'

Officials said he did not have enough evidence to support his claims, which, on three occasions, prison officials say, were filed after he received disciplinary actions.

"I certainly would have viewed it with some degree of skepticism," J.P. Guyton, TDCJ's Region III assistant director, said during testimony Wednesday.

Guyton testified that he wouldn't have approved Johnson's requests even if the Unit Classification Committee had approved them because the paperwork lacked "objective evidence."

Under cross-examination by Margaret Winter, Johnson's ACLU lawyer, Guyton acknowledged that the majority of protections and transfers approved by the UCC and the TDCJ State Classification Committee lack any proof of victimization.

In 2002, Johnson was transferred from Allred, less than a week after the ACLU sent a letter to TDCJ Executive Director Gary Johnson. Today, he lives in his native Marshall, where he says he's trying to help ex-cons re-enter society.

Yolanda M. Torres, a criminal defense attorney in Huntsville and critic of TDCJ, said Johnson's grievance experience is not unique.

"There seems to be an instinctive denial at the unit level," she said.

Some statistics show TDCJ may be more effective at addressing guard-on-inmate rape allegations than inmate-on-inmate allegations.

Between 1999 and 2005, the Special Prosecution Unit, which prosecutes crimes in prison, investigated 1,054 inmate-on-inmate rape allegations, resulting in eight convictions with sentences of two to seven years in prison.

For the same period, the unit investigated 232 guard-on-inmate allegations, resulting in 43 sentences. That accounts for nearly 19 percent of all guard allegations.